Family Responsibilities Discrimination?
Subtitle: F.R.D. — “you can call it FRED."
Apologies to my regular readers for being scarce on this blog lately. I’ve been busy, with billable work and otherwise — and maybe also needed a break from the blogging routine.
One activity has been speaking to several reporters for major publications about my CollegeRecruiter.com guest post: “Employers Using Facebook for Background Checking: Is It Legal?”
Anyhow, this item came my way, and I’ll just post it quickly, hopefully getting back in the groove of more frequent postings.
A New York Times article reports on a study by the Center for WorkLife Law discussing what is described as “a new category of discrimination suit being brought and being won.” The cases are referred to as involving ‘’family responsibilities discrimination, or F.R.D. (You can call it Fred.)”
Most plaintiffs are women caring for children, but about 10 percent are men, and some are caring for spouses or parents, not children. All claim discrimination at work because of caregiving at home.
According to this article:
Like so many evolving subsets in law, F.R.D. does not exist in any statute. Rather it is an argument being made often enough that it can now be counted and analyzed. ‘’Discrimination based on caregiving is not an expressed category’’ . . . . ‘’It’s a reflection of the creativity of lawyers who have set up a new subcategory of litigation within existing workplace discrimination laws.”
So if it doesn’t exist in any statute, what is the basis for lawsuits?
My very brief scan of the underlying study, and the cases highlighted in it, suggests that in fact the legal basis is most likely statutory — sex or pregnancy discrimination.
The study explains the legal theory this way:
Because women without caregiving responsibilities often fare well in organizations, successful maternal wall cases must establish that employees are punished not because of their sex, but because of their sex role. Thus, men can be discriminated against for being primary caregivers, if indeed they serve in a traditionally female sex role.
I find this explanation troubling and unsatisfying. Granted, I didn’t read the entire study. Nevertheless, it seems that the basis for a discrimination case would be that similarly situated males (i.e. male employees taking time off to care for children — or simply those who are fathers) are treated more favorably than female employees taking time off to care for children — or simply those who are mothers.
A more promising basis for such claims would seem to be the Family and Medical Leave Act (FMLA), a statute that does specifically — and with great precision — protect employees against undue conflict between family responsibilities and work responsibilities.
So, I guess my off-the-cuff response is that this “new category of discrimination” is either good old-fashioned disparate treatment gender discrimination or it’s perfectly lawful, provided it does not violate the FMLA. And the article is a media overreaction to a liberal academic’s theorizing. But hey, read the study and come to your own conclusions. . . .
New York Times (via LexisOne): “Family Needs In The Legal Balance
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